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[1999] HCA 26
High Court of Australia
1997-06-19
Gleeson CJ, Callinan JJ, Gummow JJ
Original judgment source is linked above.
The 1975 WA Act was not concerned with interstate intercourse, as such, and the effect, if any, that it had on it was only incidental. Moreover, the welfare jurisdiction of the Family Court of Western Australia and its powers in that regard were confined, as I have already indicated, to orders necessary to avert a risk to the welfare of a child. On that basis neither s 27(5) nor s 36(a) of the 1975 WA Act infringed s 92.
However, were ss 27(5) and 36(a) of the 1975 WA Act to be construed more widely than indicated, they would, in my view, be invalid to the extent of that wider construction, whether by application of the test identified by Deane J in Cunliffe or the less stringent test applicable in the case of an implied freedom. So far as concerns the more stringent test, there is a real question whether a law which operates to permit restriction of movement on the part of a custodial parent, usually the mother, could be said to be non-discriminatory. However, it is not necessary to explore that issue. It is sufficient to note that there is a difference between what is necessary to protect the welfare of a child or, which is the same thing, to avert a risk of harm to his or her wellbeing, and an order designed to achieve what is thought to be in his or her best interests. An order necessary to protect his or her welfare would not infringe s 92, notwithstanding that it incidentally affected interstate intercourse. On the other hand, an order designed to achieve what is thought to be in his or her best interests cannot, in any sense, be described as necessary.
So far as concerns the less stringent test, it is necessary to identify the purpose of the 1975 WA Act in its operation with respect to ex-nuptial children. In this regard it is necessary to note that the jurisdiction and powers of any court with respect to children must be exercised within the limits of what is practicable, not what is desirable. That consideration directs that the purpose of the 1975 WA Act, in its operation with respect to children, be identified as that of securing their welfare, rather than promoting it. A power to restrain a parent from moving interstate, if that is necessary to avert a risk to the welfare of a child, is one that may be fairly considered appropriate and adapted to securing the child's welfare. The same cannot be said of a power to restrain a parent from exercising his or her constitutional freedom to move interstate, if that would best promote his or her welfare.
So far as concerns the power conferred by s 28A of the 1975 WA Act to grant injunctions, that power was expressed as a power to grant injunctions "in any case in which it appears just or convenient to do so". It may well be necessary for that provision to be read down in its application to orders restraining persons from leaving Western Australia if it is to be held valid. However, that is not a matter that need be decided in this case.
It is convenient to note two incidental matters in relation to these appeals. The first is that once a question arose in the Family Court of Western Australia as to whether the mother was to be restrained from leaving the Perth Metropolitan area, a question necessarily arose as to the operation of s 92 of the Constitution. And, so far as the restraint related to her return to Darwin, a question also arose as to the operation of s 109 of the Constitution. They were questions arising under the Constitution and, thus, the Family Court of Western Australia was thereafter exercising federal jurisdiction. And it may also be that the applications for custody and guardianship were properly to be seen, not simply as applications under the 1975 WA Act, but as matters arising under that Act and, also, under s 63F(1) of the Commonwealth Act. That is a question that may require consideration if the matter proceeds to a rehearing.
The second incidental matter is, as other members of the Court point out, that, if the matter proceeds to a rehearing, the issues between the parties will fall to be resolved by the law as it now stands.
Both appeals should be allowed and the orders of the Full Court set aside. As the residence order under-pinned the custody and access orders made at first instance and may well have had a bearing on the order for joint guardianship, those orders must be set aside and the entire matter remitted to the Family Court of Western Australia for retrial. Each party should pay his and her own costs at first instance, in the Full Court and in this Court.
These two appeals arise from orders of the Full Court of the Supreme Court of Western Australia [74] . They concern what the applicable legislation then called the "custody" and "guardianship" of an ex-nuptial child in the context of a proposal by the custodial parent to relocate her residence.
AMS (the father) appeals against the orders in so far as they disturbed a determination of the primary judge that the parties should have joint guardianship of the child, and substituted an order that AIF (the mother) should have sole guardianship as well as sole custody. By her appeal, the mother contends that the Full Court erred in refusing to set aside an injunction which restrains her from changing the child's principal place of residence from the Perth metropolitan area. In this Court, both parties raised for the first time constitutional arguments which were said to require correction of the orders made below. In addition, both parties submitted that the orders were arrived at by a misapplication of the applicable law and by the adoption of an incorrect approach to the discretions which were invoked.
Behind the constitutional and other legal arguments of the parties lies a difficult problem. It is one which arises in every jurisdiction where relocation cases have been considered [75] . The problem stems from important values which the law upholds and which sometimes come into conflict. On the one hand, the best interests of a child ordinarily favour its right to know, and to have regular contact with, each parent whilst it is growing up. On the other hand, such rights exist in a society whose members enjoy a high measure of freedom of movement, which is not lost by reason only of the responsibilities which go with custody and guardianship of a child.
Your Honour, the mother proposes to stay in Perth [Her] preference is that, basically, she believes that the way of life in Darwin, and the opportunities that are available to her and the child in Darwin, would suit [the child's] interests - long term interests - better.
The [father] has a new life with his wife and expected child in Perth. He is doing what he wants I am asking the Court to allow me to live with my son where I choose. 1. The father's affidavit includes the statement: "In the event that [the mother] is allowed to take [the child] with her to the Northern Territory." The mother's affidavit includes the statement: "If the Court allows me to move to the Northern Territory."
has non-federal jurisdiction to make an order containing a provision for the custody of, guardianship of, access to, or welfare of, a child -
(a) if the child in respect of whom the order is sought is then present in the State; and
(b) if the applicant or the respondent in the proceedings in which the order is sought is resident in the State.
[T]here is no presumption either for or against the making of a joint guardianship order In my opinion the facts of this case are such that a joint guardianship order ought to be made. There is nothing in the evidence that suggests that in the future issues will arise concerning the welfare of the child in respect of which the parties cannot reach agreement.
From the point of view of the welfare of the child it seems to me that he has been in as an ideal situation as he could possibly be in given that his parents do not live together. It is my opinion that the welfare of the child would be better promoted by him continuing in that situation in the absence of any compelling reasons to the contrary. Accordingly, the mother's application for a release from her undertaking will be dismissed and an injunction will be made restraining her from removing the child from the Perth Metropolitan area. 1. Unreported; Family Court of WA; 24 April 1996 at 24, per Holden J.
Having reminded himself of the limited circumstances in which an appellate court could disturb a discretionary decision such as that in issue, Malcolm CJ concluded that no error of principle "in fact or in any other way" had been demonstrated in the conclusion reached and that the mother's appeal "should be dismissed in so far as she sought permission to remove the child" [99] . But on the question of guardianship, his Honour explained his reasons for disturbing the order for joint guardianship made at trial and for ordering that the mother have sole guardianship [100] :
[T]here was no justification for a change from the mother having sole guardianship as well as sole custody of the child. The main reason why his Honour appears to have been persuaded to make an order for joint guardianship was that the parties had exhibited such a high degree of co-operation in making decisions about the child In my opinion, the very existence of that high degree of co-operation, as well as the mother's obvious willingness to accept and abide by whatever decision the Court made concerning where the best interests of the child lay, constituted reasons why the mother's sole guardianship should not be changed. 1. Fox (1997) 139 FLR 216 at 234 2. Fox (1997) 139 FLR 216 at 234-235
The ground which was seen as authorising interference by the Full Court in the discretionary decision at first instance appears to be stated in the following short passage [101] :
[W]hen one also takes into account the fact that the father had in the meantime married and that there had been a child of that marriage, this was a further reason for preserving the status quo regarding guardianship of the child in question. The sole guardianship in favour of the mother was consistent with her role as the primary caregiver throughout the life of the child to date and the person primarily "responsible for the long-term welfare of the child" [102] In these circumstances, I concluded that no valid reason had been put before the learned Judge to disturb the status quo so far as guardianship was concerned. 1. Fox (1997) 139 FLR 216 at 235 2. FCA 1975, s 34.
From the orders made by the Full Court, the appeals now come, by special leave, to this Court.
A large number of questions were argued in the appeals. The emerging issues may be summarised as follows:
(1) Does the Australian Constitution render ultra vires the judicial orders adverse to the mother and the father, or require the reading down of the legislation pursuant to which those orders were made, to the extent that such orders or legislation would otherwise place an impermissible practical inhibition on the absolutely free movement of the mother and the father within Australia? (The constitutional point.)
(2) Do international treaties to which Australia is a party, which support the right to freedom of movement for a custodial parent, require a construction of the relevant legislation so as to render inapplicable the approach adopted in the injunction restraining the mother, as custodial parent, from relocating to the Northern Territory? (The international treaty point.)
(3) Was the correct starting point for the determination of the order for the guardianship of the child the Family Law Act 1975 Cth (FLA 1975), s 63F (as the father asserted) or FCA 1975, s 35 (as the mother asserted and the courts below assumed)? (The regime for guardianship point.)
(4) If the applicable regime was that of FCA 1975, s 35, should the special leave to appeal granted to the father be revoked upon the basis that FCA 1975 has been repealed and replaced by the Family Court Act 1997 WA (FCA 1997) under which "each of the parents of a child who is under 18 years of age has parental responsibility for the child" [103] ? (The revocation of special leave point.)
(5) If the question of guardianship is governed by FCA 1975, and if special leave is not revoked, did the decision of the Full Court miscarry in altering the order of the primary judge for joint guardianship? (The joint guardianship point.)
(6) If FCA 1975 was applicable, did the decision of the primary judge in relation to the relocation of the mother miscarry? (The relocation point.)
(7) If error is shown which requires the redetermination by the Family Court of Western Australia of the issues of guardianship, relocation and access, having regard to the repeal of FCA 1975 and the transitional provisions of FCA 1997, is the applicable regime that of the old or the new Act? (The applicable law point.)
This was not a case in which the parties would concede no merits to their opponent. Each accepted the real commitment of the other to the welfare of the child. That commitment was clearly demonstrated by the objective facts. It was recognised by the primary judge and the Full Court. There was also a measure of agreement about the approach which should be taken to the resolution of the issues:
(1) The mother expressly disclaimed any argument that the Western Australian courts lacked jurisdiction and power to grant the injunction which she contested. She accepted that, subject to the Australian Constitution, it was within the powers of the Family Court of Western Australia to impose restrictions concerning the residence of a child, in order to protect the child's rights, including those deriving from orders granting a parent access to the child.
(2) The mother conceded that certain difficulties were presented to her attack on the exercise of discretion relating to the issue of relocation from the way her case had been conducted at trial and in the Full Court. Specifically, this included a concession made for the mother at trial that if the court decided that it was in the child's best interests that he should remain in Perth "the mother proposes to stay in Perth". In this sense, the primary judge was not faced by the wrenching choice of severing the life-long connection of the child with the mother as the primary care-giver. The mother had agreed to abide by the decision of the judge. She could not contemplate loss of custody of the child that had lasted since his birth.
(3) Although some criticisms of the terms of the injunction were raised during argument, such as the indefinite duration of the order, the mother advanced no challenge on such grounds accepting that, if the circumstances changed, she could seek variation and that the order would cease when the child reached eighteen years [104] or, possibly, sufficient maturity to make decisions for himself [105] .
(4) Although in his notice of cross-appeal to the Full Court the father had persisted with a contest of the order granting sole custody to the mother, in this Court the father simply sought restoration of the orders of the primary judge. But he made it clear that, if the mother were to relocate to Darwin (or anywhere else other than Perth), he would be seeking orders to the effect that the child reside with him. Although the father pointed out that the actual terms of the injunction granted did not restrain the mother from relocating herself from Perth (as distinct from changing the child's principal place of residence), it was clear enough (and not seriously disputed) that the practical effect of the injunction was to restrain the mother's relocation to the Northern Territory, so long as the child remained in her sole custody [106] .
Relocation of a child's residence - general principles
Subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section), each of the parents of a child who has not attained 18 years of age is a guardian of the child, and the parents have the joint custody of the child.
Subject to any order made pursuant to this Division, where the parents of a child who has not attained the age of 18 years were not married at the time of the birth of the child or subsequently, the mother of the child has the custody and guardianship of the child. 1. FCA 1975, s 35 was repealed when FCA 1997 was enacted.
For the father's proposition it may be said that the provisions of FLA 1975, s 63F(1), as it formerly stood, were open ended in the sense that they applied, by inference, until the child concerned attained eighteen years of age or was made subject to any order of a court providing differently. If the status of joint custody or joint guardianship was assigned by federal law, the question arises as to how that status was lost, otherwise than by federal law? Guardianship (and custody) being matters affecting status, it would normally be expected that they would be clear and insusceptible to alteration by the mere physical movement of the child to a jurisdiction outside that to which Pt VII (Children) of FLA 1975 applies, whether Western Australia, another State or overseas.
Because each of the provisions in question (FLA 1975, s 63F(1) and FCA 1975, s 35) has been repealed, I am not inclined to delay long over this issue. The better view is that, notwithstanding the bifurcation of Australian law on ex-nuptial children in this context, once FLA 1975, s 63F(1) was attracted to provide for the guardianship of a child subject to its provisions, only federal law could alter the arrangements for guardianship so made. By the terms of s 63F(1) a court, including one operating under a law other than FLA 1975, could, by order, change the guardianship arrangement provided by s 63F(1). Thus, the Family Court of Western Australia, otherwise acting within its jurisdiction, would be empowered to do so. But its warrant for effecting the alteration would be the opening words of FLA 1975, s 63F(1), a federal Act. It would not, as such, be the powers otherwise enjoyed by that Court under its own (State) statute. Just as the Roman carried the status of citizenship, so the child, born in the Northern Territory in 1990 carried with him or her, until the age of eighteen years or until altered by order of a court, the statutory arrangement for joint guardianship by each of the parents for which FLA 1975, s 63F(1) then provided.
Accordingly, the reference by the Full Court to what it saw as the impermissible disturbance of the "status quo" which should "remain" in force was, in this case, incorrect. The status quo ante here was, so far as guardianship was concerned, precisely that which the primary judge ordered. He did not "disturb the status quo", as the Full Court suggested. He confirmed it. It "remained unaltered". By his order he continued it, although then under Western Australian law: that order displacing the federal statutory presumption which had operated to that time.
This conclusion requires that the father's appeal be allowed. It demonstrates that the suggested foundation for the order of the Full Court was misconceived in the peculiar circumstances of this case.
The mother argued that the grant of special leave in favour of the father should be revoked. This proposition was advanced on the footing that the applicable legal regime for guardianship in Western Australia had changed since the decision of the Full Court. In particular, FCA 1975, s 35, as it formerly stood, was not re-enacted in the now applicable Western Australian law, viz FCA 1997 [83] .
For several reasons, this submission should be rejected. First, because FLA 1975, s 63F(1) applied to the case, FCA 1975, s 35 was inapplicable, whatever its provisions otherwise meant. Secondly, the father had other legitimate criticisms of the approach of the Full Court, apart from those addressed to the meaning of FCA 1975, s 35. He is entitled to have those grounds of appeal determined. Thirdly, the issue of the guardianship of the child is one which concerns the status and interests of the child himself and not solely the interests of the father and the mother. I would therefore reject the motion for the revocation of the grant of special leave.
There is a further reason which supports the conclusion which I have already stated that the Full Court erred in disturbing the primary judge's order in favour of joint guardianship. This arises from the justification offered by the Full Court for interfering in the discretionary decision of the primary judge on this issue. In rejecting the mother's appeal against the injunction restraining her from changing the principal place of residence of the child from Perth to the Northern Territory, the Full Court properly reminded themselves of the restraints imposed on the disturbance of discretionary decisions generally [84] and decisions affecting custody and guardianship of children in particular [85] . However, when their Honours turned to the issue of guardianship they appear, with respect, to have proceeded to review the conclusion reached by the primary judge on the merits, rather than approaching the matter in the orthodox way by asking whether an error was shown which would entitle them, in law, to set aside that judge's decision and substitute one of their own.
Thirdly, the mother complained that neither the primary judge nor the Full Court had given any attention to the alternative proposal which she had made for enlarged rights of access to, and contact with, the child by the father during school holidays and at other times if she relocated with the child to the Northern Territory. In part, the explanation for this may have been the concession which the mother made that she would not relocate to the Northern Territory if it meant separation from the child. But, mostly, the reason for the lack of attention to her alternative proposal arose from the conclusion that the arrangements in Perth were "ideal" because they meant regular physical contact with both parents (and an extended family), whereas this would be diminished if the mother relocated. That approach impermissibly restrained the residence choices open to the mother. It illustrates an application of the legislation unduly favourable to the interests of the non-residential parent. He is subject to no injunction and he lives where he chooses effectively requiring his former partner to remain close at hand to maximise his contacts with the child of their relationship (and, it must be added, the child's contacts with him). Whilst the last stated consideration is certainly a matter proper to be taken into account, it is not the sole consideration to inform the Court's decision.
The mother has therefore established an error of principle in the approach taken by the primary judge. Allowing fully for the legal inhibitions which restrained the Full Court from disturbing a decision as to the residence of the child, that Court ought to have found that the approach, which resulted in the inhibitory injunction of which the mother complained, was affected by error. It was not her obligation to show "compelling reasons" to alter the residence of the child.
Any such alteration, with its practical consequences for the access to, and contact with, the father necessarily required a reconsideration of the issue of the residence of the child on the footing that the mother was to relocate to the Northern Territory. It required consideration in that context, of the acceptability of the alternative proposals which she advanced for different, but longer, periods of contact between the child and the father. If this was not judged satisfactory, it possibly necessitated consideration of whether a different regime, devised by the Family Court, would adequately fulfil the child's rights to regular contact with his father although no longer living permanently in close physical proximity. If such arrangements were still judged insufficient for the welfare of the child, that might necessitate, despite the life-long role of the mother as the primary care-giver, reconsideration of the entire issue of custody (or residence) and whether some joint arrangement was not appropriate. But simply to compel the mother, against her wishes, effectively to remain in the Perth metropolitan area, and to oblige her to conform to that requirement by an unlimited injunction, because her reasons for relocation were not regarded as "compelling" amounted to an erroneous exercise of the primary judge's discretion. It ought to have been corrected by the Full Court. The mother's appeal must also be allowed.
These conclusions require that there be a retrial. A question arises as to the applicable law, given that FCA 1997 came into operation on 26 September 1998.
FCA 1997 repealed FCA 1975 [97] . However, transitional provisions were enacted [98] which affect these proceedings. By cl 6(2) of Sch 2 to FCA 1997, an order with respect to the custody of a child or the guardianship of a child which was immediately before the commencement day of the 1997 Act "still awaiting determination", must be determined as if it were an application for the corresponding order or orders under Pt 5 of FCA 1997. Because, in relation to the proceedings at the first trial, the discretions with respect to the custody and guardianship of the child miscarried, those issues are, in my view, to be treated, once the orders are set aside, as "still awaiting determination". Accordingly, on remitter to the Family Court of Western Australia, they would have to be determined in accordance with the new Act. This is unsurprising. It is the course which the father supported and the mother did not contest.
Although the father's appeal was confined to a challenge to the order of the Full Court disturbing the decision of the primary judge in relation to guardianship, it is inappropriate simply to restore that decision. It may, like the issue of access, be affected by the outcome of the reconsideration of the issues of parenting and residence under the new Act. There are inconveniences for the parties in having to start afresh under new legislation. However, that is the necessary consequence of the conclusion that the present proceedings miscarried and of the operation of the transitional provisions of FCA 1997 to proceedings remitted for retrial, as these proceedings must be.
I agree in the orders proposed by Gleeson CJ, McHugh and Gummow JJ.
For the reasons given by Gleeson CJ, McHugh and Gummow JJ, I agree that in this appeal (brought by the father) the application to revoke the grant of special leave should be refused, the appeal should be allowed and orders made in the terms their Honours propose.
The injunction granted by the Family Court of Western Australia (the State Family Court) restrained the mother from "changing the child's principal place of residence from the Perth metropolitan area". Because an order was made that the mother have sole custody of the child, the effect of the injunction was to prevent her moving her place of residence from Perth (at least for as long as she had custody of the child).
The father sought to support the injunction as an order that was made "hav[ing] regard to the welfare of the child as the paramount consideration" [99] . The mother contended that the primary judge's discretion had miscarried and that the Full Court of the Supreme Court of Western Australia should have set aside the order on that basis. She also contended that the order impermissibly burdened free intercourse between the Northern Territory and a State, contrary to s 49 of the Northern Territory (Self-Government) Act 1978 Cth (the Self-Government Act). It is convenient to deal with the discretionary issues separately from the constitutional issues presented by s 49 of the Self-Government Act.
The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." [100] Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
The reasons for judgment of the primary judge in this matter must, therefore, be considered having regard to two matters. First, the father and mother had put forward competing proposals about the orders to be made. Secondly, at the start of the case the primary judge had been told by counsel for the father that "[t]here is really only one issue and that is where - or, which principal place of residence - will best serve the future welfare of this child". There were said to be three available choices - with the mother in Perth, with the father in Perth, or with the mother in Darwin or elsewhere in the Northern Territory.
Soon after being told this, the primary judge asked "if I decide that it is in the child's best interest that the child remain in Perth, what does the mother propose to do?" Counsel then appearing for the mother said that her client proposed to stay in Perth but that her case was that "it's a bona fide wish to move, and that she [the mother] genuinely believes that that is where her's and the child's best interests are served". This, then, is the context in which the reasons for judgment must be placed.
In his reasons the primary judge said that, subject to the welfare of the child being the paramount consideration, three questions should be asked: first, whether the application to remove the child is made bona fide, secondly, if the application is made bona fide, can the Court be reasonably satisfied that the custodian will comply with orders for access and other orders made to ensure the continuance of the relationship between the child and the non-custodian and, thirdly, what is the general effect upon the welfare of the child in granting or refusing the application? Having stated these questions (and noted that a custodial parent should be free to order his or her own life without interference from the other party or the Court) the primary judge went on, as he put it, "to examine closely the mother's reasons for wishing to move to Darwin". He considered the reasons proffered by the mother and concluded:
For all of the child's life he has had the benefit of considerable contact with each of his parents. Each of them has had considerable input into the child's upbringing. Although the child has always enjoyed a relationship with members of the extended families, since the mother has moved to Perth he has been brought up in an environment of close interaction with members of both extended families. From the point of view of the welfare of the child it seems to me that he has been in as an ideal situation as he could possibly be in given that his parents do not live together. It is my opinion that the welfare of the child would be better promoted by him continuing in that situation in the absence of any compelling reasons to the contrary. Accordingly, the mother's application for a release from her undertaking will be dismissed and an injunction will be made restraining her from removing the child from the Perth Metropolitan area. (Emphasis added.)
Even given the context to which I have earlier referred, I consider that the reasons of the primary judge reveal error. I accept that the reasons must be understood in the light of the particular course the trial took and, especially, the fact that the matter was presented as whether the child should live in Perth or in Darwin. Read as a whole, however, the reasons show that the primary judge considered the issue to be whether the mother had shown that she had a good (or good enough) reason for wanting to move to Darwin and that, the reason offered not being "compelling", the child should not be denied continuing frequent contact with his father and "an environment of close interaction with members of both extended families". In my view, that approach distorted the inquiry that was required.
Both the primary judge and the Full Court assumed that the Family Court Act 1975 WA (the 1975 State Act) applied to these proceedings [101] . (It is not necessary to consider the validity of this assumption. If, as I consider to be the case, the discretion of the primary judge miscarried and the appeal to the Full Court should have been allowed, the matter will have to go back for further hearing. Counsel for the mother submitted that, on the further hearing, the 1975 State Act would not apply and the provisions of Pt 5 of the Family Court Act 1997 WA (which are not materially different from the provisions of Pt VII of the Family Law Act 1975 Cth) would apply. Counsel for the father did not submit to the contrary.)
(1) The Court in the exercise of its non-federal jurisdiction shall in so far as those principles are capable of application to the case have regard to the following principles -
(a) the need to preserve and protect the institution of marriage as the union of man and woman to the exclusion of all others voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of children;
(c) the need to protect the rights of children and to promote their welfare;
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage; and
(e) the effect of any order on the stability of the marriage and the welfare of the children of the marriage.
(2) In the exercise of its non-federal jurisdictions with respect to a child the Court shall have regard to the welfare of the child as the paramount consideration.
Some of those principles had no application to this dispute: the father and mother had never married. But if the 1975 State Act applied, s 28(2) required the Court to have regard to the welfare of the child as the paramount consideration.
For present purposes, it is sufficient to say that the order that was sought was not an order directed to regulating where the mother was to live. It was an order regulating who would have custody of, and access to, the child, and on what terms.
To decide whether the exercise of discretion by the primary judge miscarried, it is necessary to identify what are the premises from which the Court was to proceed in deciding what order was to be made. Or to put the matter another way, what were the issues for decision? In particular, was the Court to assume that one parent will move his or her principal place of residence; was the Court to assume that this may happen; was the Court to decide whether it may happen?
An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
Of course, the decision of a parent who is about to move and who seeks custody may well be affected (often it will be determined) by whether he or she will have custody of the child if that proposed move is carried out. And it is, then, not surprising that counsel for the mother told the primary judge (in effect) that if the mother's having custody of the child depended upon her staying in Perth then she would not move to Darwin. But that does notmean that the question for the Court is whether the mother is to be permitted to move to Darwin. And it does not mean that the question is whether the mother has shown a "good" or a "compelling" reason for wanting to move.
To translate the question into this form - has the mother shown a good, or good enough, reason for wanting to move - focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child - to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother's custody in Darwin. If the mother had wished to move to marry and establish a new family in Darwin, or to take up new and better employment or training in Darwin, it may well have been possible to conclude that in all the circumstances the child's welfare would be advanced by his being committed to the mother's custody. The circumstances to be considered would include not only the fact of relocation but also all of the consequences that would follow - separation from the non-custodial parent, the creation of a new family in which the child would thereafter live (with all the concomitant advantages and disadvantages), the better economic position of the custodial parent, and so on. In that sense, inquiring about why the mother wished to move was relevant but it was only one inquiry among the many that go into deciding the ultimate question. The complexity (and difficulty) of the inquiries required by that question is well illustrated (in a different legislative context) by the decision of the Full Court of the Family Court of Australia in B and B: Family Law Reform Act 1995 [103] . But as that decision rightly shows, the inquiries are directed to ascertaining what is in the best interests of the child.
The complexity and difficulty of the inquiries which must be made is increased when, as was the case here, a parent's wish to move is expressed conditionally - I will go unless I cannot then have custody. It is more complex and difficult because there are then three competing possibilities for consideration. In these circumstances to focus, as the primary judge did in this case, on the reasons for the mother wishing to move, may have wrongly reduced the inquiry to two competing possibilities (of the mother having custody in Darwin or in Perth) but, more importantly, it turned it into an inquiry about whether the mother should be permitted to move. By turning it into an inquiry about whether she should be permitted to move, attention was distracted (wrongly) from what would promote the welfare of the child.
For these reasons, I agree that the primary judge's discretion miscarried and that orders should be made in the terms proposed by Gleeson CJ, McHugh and Gummow JJ.
It is unnecessary in these circumstances to decide the issues presented by the mother's reliance on s 49 of the Self-Government Act and s 92 of the Constitution. It is as well, however, if I say that, for the reasons given by Gleeson CJ, McHugh and Gummow JJ, s 49 is to be given an ambulatory meaning and the question presented by s 49 (and s 92) in a case such as the present is whether an impediment imposed under the 1975 State Act is greater than that reasonably required to achieve the objects of that Act. I agree that custody and guardianship legislation may present a question whether the statute empowers the making of orders that have a practical effect of imposing upon freedom of intercourse an impediment greater than reasonably required to achieve the object of the legislation. But construing the legislation applied in this case in the way I have, I do not consider that any separate question would then arise under s 49 or s 92. A proper exercise of the discretion would not impose an impediment upon freedom of intercourse greater than reasonably required to achieve the object of providing for the guardianship and custody of and access to children. However, as other members of the Court point out, when the matter is heard again, the Family Court Act 1997 WA will apply.
I also agree that, for the reasons given by Gleeson CJ, McHugh and Gummow JJ, the mother's reliance on the several international instruments to which we were referred does not assist the resolution of the present matter.
In this case there is an appeal by the father (the appellant) of an ex-nuptial child from a decision of the Full Court of the Supreme Court of Western Australia awarding the guardianship and custody of the child solely to the child's mother, the respondent to this appeal [104] . There is also an appeal by the mother against an order that she be restrained from changing the child's principal place of residence from the Perth metropolitan area as defined in the Town Planning and Development Act 1928 WA. I would understand that order, as may be taken to be the usual position with respect to such an order, as being subject to any further order.
The respondent was born in Geraldton in Western Australia in 1966. The appellant was born in Sydney in New South Wales in 1967. By the mid-eighties both parents had moved to Perth and commenced tertiary studies at the University of Western Australia where they met and began a relationship which was broken off in June 1989, and then resumed when the respondent discovered that she was pregnant later in the same month.
In September 1989 the appellant was offered a position in the Northern Territory which he accepted. The parties moved to the Northern Territory leaving their furniture and effects stored in Perth. In October 1989 the appellant took up his employment at Cosmo Howley Mine near Adelaide River. In December 1989 the respondent resumed cohabitation with the appellant in married quarters provided by the employer.
The child (to whom I refer simply as "J") was born at Darwin Private Hospital on 2 March 1990. He is the only child of the parties.
In February 1994 the parties decided to separate and to travel to Perth to visit their families. The appellant was the first to return to the Northern Territory, in March 1994. The respondent and J remained in Perth for an additional two weeks before travelling to the Northern Territory.
On 9 April 1994, the respondent and J went to live in Palmerston with assistance from the appellant who moved from Adelaide River to a two bedroom unit at the Cosmo Mine site.
Between April and October 1994, with one exception only, the appellant travelled 320 km each weekend to have access to J who was attending a kindergarten at Palmerston.
In October 1994 the appellant obtained employment in Perth to which he returned and where he began to cohabit with M whom he subsequently married. Two months later the respondent and J also took up residence in Perth.
In January 1995 the appellant and M bought a house at Rivervale near Perth. In the same month J began to attend the Riverton Primary School. On 26 February 1995 the respondent told the appellant that she would prefer to return to the Northern Territory. Later she agreed to stay in Perth and obtained accommodation in Perth.
By June 1995 the appellant and M had moved into the house they had bought, and had married. In October 1995 the respondent told the appellant that she may have to move to Darwin to attend the Northern Territory University if an application that she had made for a place at Murdoch University in Perth was not successful. Throughout 1995 the appellant continued to have access to J each weekend and during school holidays.
In early December 1995 the respondent decided to return to the Northern Territory with J without telling the appellant of her intentions. She then arranged temporary accommodation for herself and J in Darwin. On 21 December 1995 after all of her arrangements for the move had been made the respondent informed the appellant that she would be returning to the Northern Territory with J in January 1996. On the same date the respondent was told that she had been allotted a place in her preferred course at Murdoch University in Perth. On 11 January 1996 the appellant filed an Interim and Final Application to restrain the respondent from removing J from Western Australia and seeking joint guardianship and sole custody of J. Later this application was amended to seek joint guardianship and joint custody of the child upon the basis that he reside permanently with the appellant.
On 7 February 1996 the respondent filed a response seeking sole guardianship and sole custody of J and relief from an undertaking she had earlier given in writing not to remove the child from Perth.
After some interlocutory proceedings the applications came on for hearing before Holden J, in the Family Court of Western Australia [105] . By a judgment delivered on 24 April 1996 the trial judge made the following orders:
(a) during the school term, for two out of every three weekends commencing from Friday after school until Sunday evening;
(c) further access on important days including Christmas Day, the child's birthday, the father's birthday and Father's [sic] Day;
(d) such further or other access as may be agreed between the parties.
(a) during the school term for two out of every three weekends commencing from Friday after school until Sunday evening;
(c) further access on important days including Christmas Day, the child's birthday, the father's birthday and Father's [sic] Day; and
(d) such further or other access as may be agreed between the parties.
(a) s 35 of the Family Court Act 1975 WA [106] governed the parties so as to confer sole custody and guardianship of the child on the mother; and
(b) the father had no rights of guardianship notwithstanding that the child had been born to the father in the Northern Territory, and the father had been constituted a guardian of the child pursuant to the provisions of s 63F of the Family Law Act 1975 Cth, as it was prior to the introduction of the Family Law Reform Act 1995 Cth;
(d) s 28(3) and (1)(c) of the Family Court Act 1975 WA;
(f) the provisions of the United Nations Convention on the rights of the child as a declared instrument under the Human Rights and Equal Opportunity Commission Act 1986 Cth, the Family Law Act 1975 Cth, and the common law which provide: -
(i) the child has the right to be cared for by each parent and the right to preservation of his family relations;
(ii) the child has the right to the protection of the law against arbitrary and unlawful interference with his family;
(iii) each parent has rights and duties to provide direction to the child in exercising his right to freedom of thought, conscience and religion; and
(iv) the principle that both parents have common responsi-bilities for the upbringing and development of the child is recognised.
(a) the choice between joint and sole guardianship is a decision which is within the discretion of the learned trial judge; and
(b) the Full Court did not find that the learned trial judge's order of joint guardianship would be contrary to the best interests of the child; and
(c) the Full Court's conclusion that the supposed legal status quo outweighed those matters considered by the learned trial judge amounts only to a difference of view on the weight to be given to the considerations; and
(d) the Full Court failed to give any consideration to any of the matters listed in s 39A of the [Family Court Act 1975 WA] and failed to give paramount consideration to the detrimental effects upon the welfare of the child arising from the removal of the involvement of the father in the important decisions concerning the care, welfare and development of the child; and
(e) the Full Court allowed that determination to be influenced by an incorrect perception of the genesis of the father's application to the Court, by the mother's role as primary caregiver, by the marriage of the father and by the arrival of a child to the father's marriage which in each case is an irrelevant matter which has not been demonstrated in the reasons to support the order of sole guardianship;
(f) the Full Court's presumption in favour of the supposed legal status quo is unjust, unreasonable and plainly wrong on the facts in this case (and in any event);
when more correctly there should have been a presumption in favour of the correctness of the learned trial judge's initial decision that joint guardianship was in the best interests of the child.
(a) whilst the learned trial judge and the Full Court determined that the welfare of the child was best promoted if he was not relocated from Perth;
(b) the learned trial judge did not however give any consideration to this detrimental effect on the child if relocated from Perth as proposed by the mother in her future custody proposal, but rather
(c) the learned trial judge assessed the mother's custody proposal on the basis that the mother was not to be permitted to remove the child from Perth and would continue the past custody arrangement whereas the mother did not propose nor support that arrangement and challenges at law.
(a) the presumption by the Full Court and the learned trial judge in favour of the previous caregiving arrangement was an error of law in that an onus was placed on the father to displace that status quo, whereas, the correct consideration under s 39A(b)(iii) of the [Family Court Act 1975 WA] is an assessment of the desirability of, and the effect of, any change in the existing arrangements for the care of the child as proposed by the parents; and
(b) on these questions the learned trial judge had already determined that the father was a capable and loving parent and found no evidence of any detriment to the child which would arise from a change of custody to the father; and
(c) the consideration under s 39A(b)(iii) of the Act does not create a presumption in favour of an existing arrangement which could only be displaced by clear countervailing considerations but rather the future custody proposals must be considered afresh; and
(d) the father's proposal is not an absolute reversal from a sole caregiver but rather a change of degree in that the father had cared for the child for one third of all the days of the year; and
(e) in any event the onus placed on the father by the learned trial judge is unfair and unjust in that the father attempted to obtain independent expert evidence to assist in determining the likely impact on the child from the alternative custody proposals but this was opposed by the mother; and
(f) the learned trial judge and the Full Court failed to demonstrate a distinction between the future custody proposals on this basis and made no other distinction on any other of the considerations listed under s 39A of the Act.
(d) The principle that a custodial parent has, in general, a legitimate human right to personal choice of place of residence.
(e) That the provisions of the Family Court Act 1975 WA should be interpreted within the context of international human rights principles and that as a matter of statutory interpretation the Court should apply a rebuttable presumption that the Parliament does not intend to abrogate human rights and fundamental freedoms of which freedom of movement is one such right and freedom.
(f) The principle that a custodial parent and particularly one with sole guardianship should be left to order his or her own life without interference from the other party or from the court, so long as he or she does what may reasonably be expected to be done by him or her for the child in all the circumstances.
The matter concerns the restraint by order of the Family Court of Western Australia of a custodial parent from relocating interstate. It is to be submitted that the discretionary powers contained in the Family Court Act 1975 WA (and likewise the essentially identical discretionary powers contained in the Family Law Act 1975 Cth) must be exercised in accordance with the provisions of the Constitution. In making an order that effectively restrained the Appellant parent from relocating interstate, it will be argued that the Full Court infringed s 92 of the Constitution.
Subject to the Adoption of Children Act 1896 and any order made pursuant to this Division, where the parents of a child who has not attained the age of 18 years were not married at the time of the birth of the child or subsequently, the mother of the child has the custody and guardianship of the child.
In any event I am not satisfied that in deciding the issues of guardianship and custody, the Full Court did treat the appellant as carrying an onus in any conventional sense. It seems to me that both that Court and the primary judge undertook an analysis of the evidence without assigning an onus, either evidentiary or otherwise, to either party and with a view to ascertaining what order would best serve the welfare of the child.
The second contention of the appellant raises a question of possible inconsistency between s 35 of the Family Court Act 1975 WA and s 63F of the Family Law Act 1975 Cth. The argument is put this way.
The child was born in the Northern Territory. Section 63F of the Family Law Act 1975 Cth therefore applied to him (whilst that section had an operation) until an order to the contrary was made by any court anywhere. Section 63F was inserted in the Family Law Act 1975 Cth by the Family Law Amendment Act 1987 Cth as part of the new Pt VII of the principal Act. It was repealed on 11 June 1996. The provisions currently in force contain no like provision to s 63F. Section 63F provided as follows:
(1) Subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section), each of the parents of a child who has not attained 18 years of age is a guardian of the child, and the parents have the joint custody of the child.
(2) An order shall not be made under this Part in relation to the custody or guardianship of, or access to, a child who has attained 18 years of age or is or has been married.
(3) An order made under this Part in relation to the custody or guardianship of, or access to, a child ceases to be in force when the child attains 18 years of age or marries.
(4) The following provisions apply in relation to rights of custody or guardianship of a child, or access to a child, existing under this Act immediately before the adoption of the child:
(a) if the child is adopted by a person who, before the adoption, is not a prescribed adopting parent - those rights cease; or
(b) if the child is adopted by a prescribed adopting parent, where a court granted leave under section 60AA for the adoption proceedings to be commenced - those rights cease; or
(c) if the child is adopted by a prescribed adopting parent and leave was not granted under section 60AA for the adoption proceedings to be commenced - those rights do not cease.
(5) On the death of a parent in whose favour an order has been made under this Part for the custody of a child:
(a) the other parent is entitled to the custody of the child only if the court so orders;
(b) the other parent or another person may make an application to the court for an order placing the child in the custody of the applicant; and
(c) in an application under paragraph (b) by a person who does not, at the time of the application, have the care and control of the child, any person who, at that time, has the care and control of the child is entitled to be a party to the proceedings.
The appellant argued that because the child was born in the Northern Territory a jurisdiction governed by the statute, and s 63F was then in force, it applied so long as guardianship might be appropriate for the child and no order of a court to a contrary effect was made anywhere else. The appellant contended that there is or was nothing in the Family Law Act 1975 Cth to suggest that its provisions were to be applicable only during the time when the child, or his parents or a parent, resided in the Northern Territory.
This is a far reaching submission. The section did not say in terms that its application was to depend on any accident of birthplace. The appellant accepted that if the submission be correct both parents of a child born in the Northern Territory would be guardians and custodians of that child no matter where in the world any of them, including the child lived; and presumably no matter what legislation might be applicable to the child in some other country, until an order to a different effect was made by a court anywhere respecting the child's custody and guardianship.
The appellant further argued that a narrow construction of s 35 of the Family Court Act 1975 WA should be adopted because otherwise, in respect of a child coming from the Northern Territory to reside in Western Australia there would be a conflict between s 63F of the Family Law Act 1975 Cth and s 35 of the Family Court Act 1975 WA. If a different construction were to be adopted then s 109 of the Constitution would operate, so, it was put, to strike down s 35 of the Family Court Act 1975 WA: if the provision for joint guardianship in s 63F were to come to an end as a matter of construction of that section, s 35 would be inconsistent with s 63F and, by reason of s 109 of the Constitution, would be rendered inoperative.
One of the purposes of the Family Law Amendment Act 1987 Cth was to implement the reference of powers from New South Wales, Victoria, South Australia and Tasmania relating to the custody and guardianship of, and access to, children in those States and to apply the Family Law Act 1975 Cth as amended to the Territories to which the Family Law Act 1975 Cth applied [110] .
Relevant provisions of s 60E of the Family Law Act 1975 Cth inserted by the Family Law Amendment Act 1987 Cth were:
(1) Subject to subsections (4) and (5), this Part extends to New South Wales, Victoria, South Australia and Tasmania.
(a) the Parliament of Queensland or Western Australia refers to the Parliament of the Commonwealth the following matters or matters that include, or are included in, the following matters:
(i) the maintenance of children and the payment of expenses in relation to children or child bearing;
(ii) the custody and guardianship of, and access to, children; or
(b) Queensland or Western Australia adopts this Part;
then, subject to subsections (4) and (5), this Part also extends to Queensland or Western Australia, as the case may be.
(3) This Part applies in and in relation to the Territories.
The express provisions of s 60E of the Family Law Act 1975 Cth therefore contemplated that the law applying in Western Australia to custody, guardianship and access issues in respect of ex-nuptial children would apply in that State, if, but only if there were a reference or an adoption of the Commonwealth provisions by that State, to the Commonwealth and the Family Court, but the Family Law Act 1975 Cth would apply to children in the Northern Territory.
I do not think that any question of inconsistency truly arises. Section 63F, although on its face apparently unconfined in operation with respect to children, either nuptial or ex-nuptial, has to be read subject to, and as being intended to be within a head of constitutional power or the subject of an appropriate reference by the State to the Commonwealth pursuant to s 51(xxxvii) of the Constitution. There has been no reference. The only Commonwealth constitutional power with respect to children is to be found in s 51(xxii) which is subject to the qualification that Commonwealth legislation concerning the custody and guardianship of infants must be related to divorce and matrimonial causes [111] :
Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants. 1. See Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383 at 402, 405, per Barwick CJ; at 423, per Aickin J; at 433, per Wilson J.
It seems to me to be very unlikely that the Commonwealth legislature would have intended s 63F of the Family Law Act 1975 Cth to have an operation with respect to a subject matter over which it would not ordinarily have any power to legislate without a reference by a State pursuant to s 51(xxxvii) of the Constitution. The Commonwealth in its submissions at least accepts that in order for s 63F to operate upon an ex-nuptial child there had to be some connection between the child and the Territory, and that this child's connection with the Northern Territory had entirely ceased at the inception of these proceedings.
Section 63(7) of the Family Law Act 1975 Cth (which was later replaced by s 69K of the Family Law Reform Act 1995 Cth) [112] recognised the need for a demonstrated connection, certainly so far as the jurisdiction of a Court of a Territory is concerned, between at least one of the parties to the proceedings, and the Territory. It provided as follows:
Jurisdiction in relation to a matter arising under this Part in relation to which a proceeding is instituted under this Part is not conferred on a court of a Territory unless at least one of the parties to the proceedings is, on the day of the institution of the proceedings or the day of the transfer of the proceedings to that court, ordinarily resident in the Territory. 1. Section 69K now provides: "A court of a Territory must not hear or determine proceedings under this Part unless at least one of the parties to the proceedings is ordinarily resident in the Territory when the proceedings are instituted or are transferred to the court."
The very broad definition of child in Pt VII of the Family Law Act 1975 Cth is relevantly affected in certain important respects by s 69ZH(2) which states that particular divisions and sections of Pt VII have the effect they would have, as if each reference to a child were confined to a reference to a child of a marriage [113] . This restriction on the Act's reach is an acknowledgment of the constitutional limitations on the Commonwealth's power contained in s 51(xxii) as interpreted by the High Court in earlier cases decided in respect of similar provisions [114] .
It is against the background of these referrals by nearly all of the States that the Family Law Act 1975 Cth is stated to apply to New South Wales, Victoria, Queensland, South Australia and Tasmania [116] . The referrals, however, do not make any express references to "welfare".
I think that there are reasons why no intention to legislate in respect of ex-nuptial children ordinarily resident or domiciled in Western Australia should too readily be imputed to the Commonwealth.
It is doubtful whether this child's parents ever had any plan to reside in the Northern Territory indefinitely, or that they established a different domicile from Western Australia. The child has spent so far about four and a half years of his life there. At the time of the applications to the court the appellant and the respondent were all resident in Western Australia and the appellant domiciled there.
I have referred to the domicile and residence of the parties because these were matters which were relevant to the exercise of the parens patriae jurisdiction of the High Court of the United Kingdom and the Supreme Courts of the States. In Western Australia the Supreme Court could always exercise the parens patriae jurisdiction subject to any statutes dealing with children on the grounds of nationality and ordinary residence [117] .
The classical statement is that of Lord Campbell in Johnstone v Beattie [130] :
I do not doubt the jurisdiction of the Court of Chancery on this subject, whether the infant be domiciled in England or not. The Lord Chancellor, representing the Sovereign as parens patriae, has a clear right to interpose the authority of the Court for the protection of the person and property of all infants resident in England. 1. (1843) 10 Cl & Fi 42 at 119-120 [8 ER 657 at 687]. See also Descollonges v Descollonges (1959) 183 NYS 2d 943; In re P (GE) (an Infant) [1965] Ch 568. See also Holdsworth, A History of English Law, 2nd ed (1937), vol 6, p 648: "The equitable control over infants, and the guardians of infants, arose in its modern form after the abolition of the military tenures, and the court of Wards and Liveries. The equitable jurisdiction was based, it is said, not on any inherent jurisdiction, but upon a special delegation by the crown of its prerogative right, as parens patriae, of looking after their interests. In 1696, in the case of Falkland v Bertie , it was said, "In this court there were several things that belonged to the king as pater patriae, and fell under the care and direction of this court, as charities, infants, idiots, lunatics, etc. Afterwards such of them as were of profit and advantage to the king were removed to the court of Wards by the statute; but upon the dissolution of that court, came back again to the Chancery." This view has generally been accepted as the origin of this jurisdiction of the court; and it is true that, after the dissolution of the court of Wards, this jurisdiction of the Chancery developed." (Footnotes omitted.)
It is unlikely that against the background of the long history of the exercise of the parens patriae jurisdiction over children essentially based on residence that the Commonwealth would have set out to legislate for the guardianship and custody of ex-nuptial children no matter where they might be resident at any time during infancy [131] . (No question arises in this case as to the operation of the principle in those cases which might attract the diversity jurisdiction [132] .)
Subject to this Act, the court has non-federal jurisdiction under this Act to make an order containing a provision for the custody of, guardianship of, access to, or welfare of, a child -
(a) if the child in respect of whom the order is sought is then present in the State; and
(b) if the applicant or the respondent in the proceedings in which the order is sought is resident in the State.
Trade, commerce and intercourse between the Territory and the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
Subject to this Act, in exercising its non-federal jurisdictions with respect to a child the Court may -
(a) make such order in respect of those matters as it thinks proper;
The Court in exercising its non-federal jurisdictions under this Act may grant an injunction, either unconditionally or upon such terms and conditions as the Court thinks appropriate, by interlocutory order or otherwise (including an injunction in aid of the enforcement of an order), in any case in which it appears to the court, having regard to the principles set out in section 28, to be just or convenient to do so.
But given that emphatic injunction that the freedom of intercourse is absolute, it is a natural, if not necessary, conclusion that the freedom of intercourse guaranteed by s 92 should be impaired only by laws that are necessary for the government of the nation or its constituent parts. A law is necessary in the relevant sense only if there is a real social need for it and the restriction or burden on interstate intercourse is "no more than is proportionate to the legitimate aim pursued" [145] . Unless the impact of legislation on the freedom of interstate intercourse is so restricted, the freedom of intercourse that s 92 guarantees would be a freedom that was subject to enacted laws. Such a construction would make s 92 superfluous and fail to give effect to the injunction that the freedom is to be absolute. The words "intercourse among the States shall be absolutely free" in s 92 should, therefore, be given their ordinary and natural meaning, limited only by the need to accommodate laws that are reasonably necessary for the government of a free society regulated by the rule of law.
Obviously, a law that incidentally restricts or burdens interstate intercourse as the consequence of regulating another subject matter will be easier to justify as being consistent with the freedom guaranteed by s 92 than a law that directly restricts or burdens a characteristic of interstate intercourse. But whether the restriction or burden is direct or indirect, it is inconsistent with the freedom guaranteed by s 92 unless the restriction or burden is reasonably necessary for the government of a free society regulated by the rule of law.
This is very much the situation that existed here. Counsel who represented the appellant at the hearing before Holden J opened his case in this way:
There is really only one issue in my submission, your Honour, and that is where - or, which principal place of residence - will best serve the future welfare of this child.
The - that issue - you are presented with three options, effectively, by the parties, in resolving that issue, and those three options are simply: first, that the child continues to principally reside with the mother in Perth; secondly, that the child principally resides with the father in Perth; or, thirdly, that the child principally resides with the mother in Darwin, or elsewhere in the Northern Territory. Now that, essentially, is what this case is about. Our submission is, that decision having been made, the parties are likely to be able to sort out the final details of the arrangements then to be made for the child. That has been the history of the parties' dealings with each other, in the two years since separation. They only had to call upon - not only the court - but they've only even had to call upon solicitors to try and resolve this issue, of whether the child should be allowed to go to Darwin, or whether he should now take up residence principally with the father. Being able to simply express the issue, belies the gravity of the matter, and the difficulty in weighing it up, and that's, in my submission, evident from the authorities cited by both myself and my friend, and the difficulty in cases where the merits of both parents are finely balanced.
No exception was taken to the way in which the matter was put on behalf of the appellant and indeed the respondent's counsel responded to the trial judge's invitation to the respondent to state her proposition:
His Honour: Well, I understand what you're saying. Let me ask: if I decide that it is in the child's best interest that the child remain in Perth, what does the mother propose to do?
His Honour: Does she propose to stay in Perth, or go to Darwin?
Ms Turley: Your Honour, the mother proposes to stay in Perth.
His Honour: Yes. And all of her reasons for wanting to move to Darwin, are as set out in her affidavit?
The parties maintained and repeated these positions throughout the hearing.
Accordingly it is not surprising to discover that a substantial part of the reasons of the trial judge are taken up with the relative advantages to the child of residence in Perth or in Darwin.
I can discern no error in the way in which the trial judge set out to exercise and exercised his discretion. His Honour first summarised the parties' lives as they affected the child. He next turned to a consideration of the welfare of the child, and understandably referred in this context to the respondent's preparedness to remain in Perth if the Court thought the child should reside there. He then gave careful consideration to each of the matters that the Family Court Act 1975 WA required him to take into account. His Honour next said:
This case involves a contest between two capable, caring and loving parents. They both profess to have nothing but the child's best interests at heart and no doubt that is true. The unfortunate thing is that they have differing ideas as to what would best fulfil the child's needs and therefore the unenviable task of deciding that matter falls to the Court. In my opinion, there is one very important factor in this case which separates the parties. That factor is that ever since [J] was born the mother has been his primary caregiver.
Given the historical pattern of care for the child, and given the warmth and standard of that care, I cannot see that it would be desirable to now remove the child from the care of his mother unless there was some compelling reason to do so. In my opinion, no such reason, compelling or otherwise, exists. Whilst the mother has been administering this care to the detriment of her own personal position, the father has been able to continue working, to continue pursuing his career, to acquire property and commence a family. For him to now say that the result is that he can provide a better environment for the child is, in my view, unfortunate. It has been suggested, somewhat critically, that the mother has said some unkind things about the father during the course of these proceedings. To the extent that that is so one can understand how she may feel.
For the reasons expressed above, in my opinion, the best interests of the child [J] would be best served by him remaining in the custody of his mother.
The possible residence of the child in Darwin was then given extensive consideration. It had to be. It was highly relevant to the child's "education and upbringing" an expression used in s 39A(1) of the Family Court Act 1975 WA. His Honour discussed the advantages and disadvantages attaching to residence of the child in either of Perth or Darwin. He did not disregard the aspirations of the respondent to order her own life. He acknowledged those aspirations in this unexceptionable passage:
In considering the last matter and subject to the welfare of the child being the paramount consideration, a custodial parent and particularly one with sole guardianship of a child should be free to order his or her own life without interference from the other party or the Court [150] . Whilst these are the general principles, the fact remains as was stated by the Full Court in In the Marriage of I & I [151] that each case is different and must be approached from the point of view of its own particular facts, bearing in mind the paramountcy of the child's welfare. 1. See In the Marriage of Fragomeli (1993) 113 FLR 229; [1993] FLC ¶92-393 and In the Marriage of I and I (1995) 125 FLR 312; [1995] FLC ¶2-604. 2. (1995) 125 FLR 312; [1995] FLC ¶2-604.
In the end the primary judge thought the welfare of the child would be better served by his residence in Perth:
For all of the child's life he has had the benefit of considerable contact with each of his parents. Each of them has had considerable input into the child's upbringing. Although the child has always enjoyed a relationship with members of the extended families, since the mother has moved to Perth he has been brought up in an environment of close interaction with members of both extended families. From the point of view of the welfare of the child it seems to me that he has been in as an ideal situation as he could possibly be in given that his parents do not live together. It is my opinion that the welfare of the child would be better promoted by him continuing in that situation in the absence of any compelling reasons to the contrary. Accordingly, the mother's application for a release from her undertaking will be dismissed and an injunction will be made restraining her from removing the child from the Perth Metropolitan area.
I do not take his Honour there in using the word "compelling" to be saying more than that in this case there would need to be strong, indeed compelling reasons, for an order which would allow the child to reside other than in Perth. His Honour was not purporting to state any general legal principle. In many cases the happiness of the parents and the extent to which the wishes and hopes of each of them are being fulfilled will be capable of having an impact upon the welfare of children. However the relevance that a parent's desire to live in a particular place will have must depend upon the circumstances of the case and is susceptible of no statement of general principle.
The Full Court could detect no error in his Honour's approach to the issues which led to the making of the order with respect to residence that he did and nor can I. The relevant legislation does not require that a judge consider any factor in any particular order. Sometimes it may be convenient to deal with some matters ahead of others, but the only critical requirement is that whatever approach is adopted it be the one best adapted to the case in hand to the ascertainment of the welfare of the child.
This case was, like so many of these cases, one in which each parent was honestly striving to secure the best interests of the child. Because each was well intentioned, and suitable as a guardian and custodian, the trial judge was obliged to make some very difficult choices indeed. What is important is that a court have proper regard to all of the relevant matters in order to determine how and where the best interests or welfare of the child will be served. It cannot be inappropriate in determining that matter to consider the legitimate aspirations and desires of those who wish to have the custody and guardianship of the child. This the trial judge anxiously did and has not been shown to be in error in so doing, either in the Full Court or here.
I would dismiss both appeals and make no orders as to costs.
AMS
AIF
High Court of Australia Gleeson CJ Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ AMS v AIF (No P29/1998) [1999] HCA 26
The courts have always been prepared, when the welfare of the child requires it, to divorce custody from guardianship; the existence of guardianship in one person is not a bar to the making of an order for custody in favour of another. 1. Holden v Holden [1968] VR 334 McM v C [No 2] [1980] 1 NSWLR 27 In re D (an Infant) [1943] Ch 305. 2. (1974) 133 CLR 345 at 366.
(1962) 107 CLR 529
(1974) 133 CLR 345
(1997) 139 FLR 216
(1976) 133 CLR 603
(1988) 166 CLR 79
(1981) 148 CLR 383
(1958) 99 CLR 132
(1982) 150 CLR 615
(1930) 43 CLR 472
(1983) 151 CLR 575
(1999) 196 CLR 553
(1978) 140 CLR 584
(1975) 134 CLR 559
(1988) 165 CLR 360
(1999) 196 CLR 392
(1980) 145 CLR 457
(1996) 189 CLR 253
(1997) 190 CLR 410
(1986) 161 CLR 556
(1945) 70 CLR 1
(1994) 182 CLR 272
(1992) 177 CLR 1
(1949) 79 CLR 497
(1958) 101 CLR 536
(1992) 177 CLR 106
(1997) 190 CLR 1
(1998) 79 FCR 528
(1945) 70 CLR 60
(1960) 106 CLR 186
(1994) 181 CLR 183
(1998) 195 CLR 337
(1998) 196 CLR 53
(1981) 149 CLR 227
(1984) 156 CLR 170
(1976) 138 CLR 492
(1996) 187 CLR 416
(1999) 196 CLR 141
(1988) 90 FLR 319
(1992) 175 CLR 218
(1994) 181 CLR 583
(1994) 181 CLR 639
(1990) 169 CLR 482
(1948) 76 CLR 1
(1996) 186 CLR 630
(1945) 80 CLR 597
(1997) 140 FLR 11
(1912) 16 CLR 99
(1995) 125 FLR 312
(1993) 113 FLR 229
(1974) 9 SASR 479
(1998) 145 FLR 456
(1999) 140 FLR 11
(1979) 36 FLR 12
(1976) 26 FLR 131
(1998) 90 FLR 319
(1981) 7 FamLR 619
(1993) 114 FLR 32
(1995) 128 FLR 126
(1988) 146 FLR 267
(1995) 127 FLR 79
(1979) 144 CLR 513
(1945) 71 CLR 29
(1997) 190 CLR 513
(1936) 55 CLR 1
(1976) 135 CLR 110
(1922) 31 CLR 174
(1992) 175 CLR 1
(1992) 177 CLR 292
(1936) 55 CLR 499
(1938) 60 CLR 336
(1984) 10 Fam LR 213
(1985) 156 CLR 249
(1986) 161 CLR 376
(1981) 147 CLR 677
(1999) 196 CLR 245
(1998) 195 CLR 184
(1997) 189 CLR 579
(1969) 120 CLR 1